TMI Blog2015 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is not an iota doubt that the present refund claim arises out of applicability of provisions of Finance Act to the services rendered by the appellant. Therefore, any refund claim arises as a consequence to the application of the provisions of Finance Act,1994 ought to be in accordance with the provisions prescribed for refund under the Central Excise Act,1944 as applicable to service tax matters by virtue of Sec.83 of the Finance Act, 1994, in view of the observation of the Hon'ble Supreme Court in Mafatlal Industries' case [1996 (12) TMI 50 - SUPREME COURT OF INDIA]. - Decided against the assessee. - Service Tax Appeal Nos. ST/398/2011 - - - Dated:- 4-3-2015 - D M Misra, Member (J),J. For the Appellant : Sri S Bagaria, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly It cannot be construed as a consequential relief, except for the said period. Also he has rejected on the ground of unjust enrichment. 4. The Ld. Advocate Shri S. Bagaria for the appellant submits that since the registration charges collected by the applicant in getting the vehicles registered with the District Transport office do not fall under the category of Business Auxiliary Services as held by the Jt. Commissioner in the adjudication order dated 26/12/2007, therefore, amount of Service Tax collected between September, 2004 to September, 2007, ought to be refunded. He submits that the demand is not barred by limitation as the Order-in-Original which dropped the initial demand against them holding that Service Tax on regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rued as a refund consequent of a judgment, degree, order or direction of Appellate Authority, Appellate Tribunal or any Court. He has submitted that since the issue of refund relates to collection of service tax under the Finance Act,1994 and the provisions of the law has not been declared ultra vires therefore, in view of the decision of the constitution Bench in Mafatlal Industries Ors. Vs. UOI 1997 (89) ELT 247(SC) which was later followed in the case of SRF Ltd. Vs. Asst. Collector of C. Ex. 2001 (134) ELT 324(SC) , Union of India Vs. Amines Plasticizers Ltd. 1997 (93) ELT 323 (SC) the refund is governed by Sec.11B of CEA,1944. 6. Heard both sides and perused the records. I find that a show cause notice was initially issued to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;] 7. I also find that there is not an iota doubt that the present refund claim arises out of applicability of provisions of Finance Act to the services rendered by the appellant. Therefore, any refund claim arises as a consequence to the application of the provisions of Finance Act,1994 ought to be in accordance with the provisions prescribed for refund prescribed under the Central Excise Act,1944 as applicable to service tax matters by virtue of Sec.83 of the Finance Act, 1994, in view of the observation of the Hon'ble Supreme Court in Mafatlal Industries' case (supra) which reads as: 99.The discussion in the judgment yields the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of and in accordance with the provisions of Section 11B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it. The said enactments including Section 11B of Central Excises and Salt Act and Section 27 of the Customs Act do constitute law within the meaning of Article 265 of the Constitution of India and hence, any tax collected, retained or not refunded in accordance with the said provisions must be held to be collected, retained or not refunded, as the case may be, under the authority of law. Both the enactments are self-contained enactments providing for levy, assessment, recovery and refund of duties, imposed thereunder . Section 11B of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decision on another person's case; this is the ratio of the opinion of Hidayatullah, CJ. in Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into account the principle underlying Clause (c) of sub-section (1) of Section 17 of the Limitation Act, 1963. A refund claim in such a situation cannot be governed by the provisions of the Central Excises and Salt Act or the Customs Act, as the case may be, since the enactments do not contemplate any of their provisions being struck down and a re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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